558 A.2d 619 | Pa. Commw. Ct. | 1989
Before this Court is an appeal by Roy E. Westfall (Licensee) from an order of the Court of Common Pleas of Allegheny County sustaining the Department of Transpor
The facts of this case are undisputed. Licensee was arrested on February 16, 1987, and charged with violating Section 3345(a) of the Vehicle Code, 75 Pa.C.S. § 3345(a) (failure to stop when approaching a school bus with flashing red lights). On February 22,1987, Licensee, proceeding pro se, pled guilty to the violation by paying a fine to the traffic court of the City of Pittsburgh. On that same date, DOT notified Licensee that five points were being assigned to his driving record and that his operating privileges were going to be suspended for a period of sixty days.
However, on September 3, 1987, a petition under the Post Conviction Hearing Act (PCHA), 42 Pa.C.S. § 9541-9551,
Prior to that order, however, Licensee had filed an appeal from DOT’s suspension of his operating privilege and a hearing was held on October 7, 1987. At that hearing, DOT’s counsel agreed to a continuance until the summary criminal appeal was heard before the traffic court. The case was relisted and a second hearing on the suspension was held on December 16, 1987. Again, however, Licensee’s summary criminal appeal had not been heard. The trial court then instructed Licensee to have the case heard before the traffic court, or the suspension would stand. A third suspension hearing was held, and Licensee’s criminal appeal still had not been heard by the traffic court. The trial court then granted Licensee one week to return with an order from the traffic court. Licensee, however, did not do so, and on March 30, 1988, the trial court dismissed Licensee’s appeal and sustained DOT’s suspension of his
The issue before this Court is whether DOT’S suspension action is contingent upon the outcome of Licensee’s underlying criminal conviction. We believe that it is.
In an appeal to a trial court from a suspension of a driver’s license, DOT has the burden to produce a record of conviction which supports the suspension. Department of Transportation, Bureau of Traffic Safety v. Stiver, 100 Pa.Commonwealth Ct. 573, 515 A.2d 99 (1986).
In the case before us, however, the PCHA order reviewed by the trial court relates directly to the validity of the criminal order, not to any attempt to alter or adjudicate a civil penalty. In other words, the PCHA order goes to the heart of the criminal conviction.
DOT also contends that anything that transpires after the date of DOT’s official notice of suspension is irrelevant and beyond the trial court’s scope of review. It cites two cases to support this contention: Department of Transportation, Bureau of Driver Licensing v. Hoover, 116 Pa.Commonwealth Ct. 538, 543 A.2d 191 (1988), and McKay v. Commonwealth, 52 Pa.Commonwealth Ct. 24, 415 A.2d 910 (1980). In both cases, this Court held that DOT’s burden
Here, we must acknowledge the fact that the PCHA order was entered subsequent to DOT’s suspension of Licensee’s operating privileges. However, as previously stated, the PCHA order voided Licensee’s criminal conviction ab initio. In Hoover, the validity of the Licensee’s original criminal conviction was not challenged, and in McKay
Finally, DOT contends that the trial court’s order vacating Licensee’s original conviction is invalid since Licensee did not file proof of service upon the District Attorney’s office of Allegheny County. We, however, believe that DOT lacks standing to raise this issue as it is not a party to the criminal suit. See generally Application of Biester, 487 Pa. 438, 409 A.2d 848 (1979). Even if DOT had standing to raise this issue, it failed to raise it below and thus waived it. See Pa.R.A.P. 302(a).
The trial court in rendering its decision stated that Licensee had the burden to move his criminal case forward, and since he did not, it sustained the suspension. Although this Court does not wish to condone Licensee’s lack of effort in having his case moved forward, especially since he was directed to do so by the trial court,
Therefore, we shall reverse the order of the trial court sustaining DOT’s suspension and remand this case back to that court to await the outcome of Licensee’s criminal hearing.
ORDER
NOW, May 17, 1989, the order of the Court of Common Pleas of Allegheny County in the above-captioned matter is hereby reversed, and the case is remanded back to that Court with instructions that it conduct a new hearing subsequent to the hearing in the summary conviction case. The Chief Clerk is directed to mail a copy of this order to the District Attorney of Allegheny County.
Jurisdiction relinquished.
. The PCHA has been suspended insofar as it is inconsistent with the Rules of Criminal Procedure. See Pa.R.Crim.P. 1507. The validity of the rule as it applies to this case, however, has not been challenged.
. In its brief, DOT contends that its suspension action is not contingent upon the outcome of an appeal of a licensee’s ongoing criminal conviction. This Court agrees with this statement as a correct assessment of the law. In the case before us, however, Licensee is not in the process of appealing his conviction. Licensee’s original conviction has been vacated and DOT and Licensee are awaiting the outcome of the new summary conviction hearing.
. DOT contends that Licensee did not raise the issue of the PCHA before the trial court and that it has been waived. We do not agree. We have carefully reviewed the record and have found that Licensee did raise and discuss the ramifications of the PCHA.
. This Court wishes to note that a copy of the trial court’s order vacating Licensee’s original conviction and remanding it to the trial court for a new summary conviction hearing does not appear in the original record. It is well settled that this Court cannot consider evidence that is not in the original record. Pa.R.A.P. 1951; Commonwealth v. Young, 456 Pa. 102, 114-116, 317 A.2d 258, 264-265 (1974).
Here, however, since neither party contests the existence of the order and since a copy of it appears in the reproduced record, we shall, for the purposes of judicial economy only, consider it. We wish to note, however, that the onus is upon Licensee to make the order part of the record and that such an omission is egregious.
. DOT contends that the PCHA does not apply to summary traffic violations. Upon examination of this issue, this Court believes that
. The facts in McKay were such that a criminal hearing was not required. The licensee was a self-confessed drug addict whose license was recalled for incompetency pursuant to Section 1518 of the Vehicle Code, 75 Pa.C.S. § 1518.
. During the October 1987 suspension hearing, the trial court directed Licensee to have his case listed for trial.
THE COURT: Well, you have to go down there and set it up. It’s the same thing here on these cases, if we continue it, unless it’s called back to our attention, that doesn’t dismiss it. You just can’t let it lay there and say 'Hey, I’m safe.’ That’s not going to happen. It’s not fair.
. See Section 706 of the Judicial Code, 42 Pa.C.S. § 706.